Employers and employees need to understand the employment tribunal rules governing time limits, including the circumstances in which the tribunals will extend these limits. Following the Labour Party's recent proposal to extend the time limit for presenting a claim from three to six months, we look at how this could help those grappling with mental health conditions, how they are currently protected and what an extension of time limits could mean for employers.
Disability History Month: Time's up - Employment tribunal time limits and mental health conditions
Disability History Month runs from 16 November to 16 December 2023.
For the first of our weekly articles that spotlight disability issues during Disability History Month, we focus on the extension of time limits for presentation of claims in the employment tribunal in relation to a claimant's mental health condition.
The Labour Party recently restated its proposal to extend the time limit for raising an employment tribunal claim from three to six months from the date of the alleged act. One of the potential benefits of this proposal cited by Labour is that it could combat the "motherhood penalty" by granting pregnant women more time to assert their rights. However, the implications extend far beyond this demographic. The extension could act as an opportunity to address a crucial issue often overlooked in legal discourse: the unique challenges faced by individuals grappling with mental health conditions.
Mental health conditions, in their various forms, impact a substantial portion of the workforce. The complexity of these conditions, ranging from anxiety and depression to more severe disorders, frequently creates hurdles to timely legal action. Many battling such conditions find it challenging to adhere to the existing stringent time limits. These limits can be especially unforgiving when the manifestations of mental health issues make it difficult to seek legal representation, navigate the intricacies of a tribunal claim, or even muster the courage to initiate the process.
As it stands, employment tribunals do have the discretionary power to extend time limits and offer a potential lifeline to those who have missed the deadline under specific and exceptional circumstances.
The general rule is that claimants have three months less one day to raise a claim (with claimants being afforded six months for limited claims). The clock starts to tick from the date of the "relevant event" (for example, the date of a dismissal or a discriminatory act).
There is one important caveat to this: the clock will stop during the Acas Early Conciliation period, which requires prospective claimants to contact Acas prior is raising a tribunal claim. Time is effectively suspended whilst Acas attempts to assist the parties to reach an agreement and the time to raise a claim is then extended by the period of time parties were engaged in early conciliation (which may last up to six weeks).
As mentioned, the employment tribunal can, however, extend the normal time limits. There are two main tests which govern the tribunal's discretion to do so:
- Just and equitable – this test applies in discrimination and statutory redundancy pay claims. The tribunal has the power to extend the time limit by such further period as it considers "just and equitable", taking into account anything the tribunal deems relevant; and
- Not reasonably practicable – this test applies to claims of unfair dismissal and other non-discrimination employment rights claims. If the tribunal determines that it was not reasonably practicable for the claimant to present the claim in time, it will consider whether the claim was raised "within such further period as the tribunal considers reasonable". This test is a stricter one for claimants to meet than the just and equitable test.
Case law has established that a tribunal cannot hear an out-of-time complaint unless the claimant satisfies the tribunal that one of the above tests has been met. There is no presumption that time will be extended.
In exercising discretion to extend time limits, tribunals are not mechanistic in their approach. As opined by Lord Justice Sedley in Chief Constable of Lincolnshire Police v Caston, "[t]here is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised". Rather, it is a matter for the individual judge to determine when faced with an out-of-time claim.
Factors which may be relevant include:
- the substantial cause of the claimant's failure to comply with the statutory time limit;
- whether the claimant knew of their rights;
- the prejudice which either party would suffer as a result of the decision reached;
- the impact of a claimant's mental health condition on the claimant during the limitation period; and
- any supporting medical evidence.
Examples of where the tribunal has extended time limits due to a claimant's mental health include:
- Where a claimant gave her solicitors misleading instructions regarding the date of key events due to her poor mental health (Chief Constable of Lincolnshire Police v Caston)
- Where a claimant's poor mental health had impacted her cognitive functions, including her memory. In this case the employer accepted that the delay had not caused any prejudice against them (Grave v United Reform Church); and
- Where a claimant was not aware of his rights or relevant time limits and there was sufficient evidence regarding the difficulties he suffered during the relevant period due to his severe anxiety, paranoid thoughts and suicidal ideation. The circumstances of the claimant's condition were such that the tribunal accepted it was not reasonably practicable for him to have taken steps to lodge a claim (Mr D Dalgleish v McLaren Packaging Ltd).
What is clear from current case law is that the fact that a claimant suffers from mental health conditions does not automatically mean that the tribunal will exercise its discretion to extend time limits. Time limits are enforced strictly and extensions exceptional.
Whether an extension to six months will actually happen remains to be seen and the implications would be significant, for both employees and employers. Whilst employees facing mental health difficulties would benefit from a more generous timeframe, an increase in time limits would mean a lengthier period of uncertainty for employers as to whether a claim will be brought against them, and likely more claims being raised. With the Acas Early Conciliation period, the proposal could result in employers facing a 7.5 month waiting period following a relevant event in which their employees could lodge a claim (as well as any extension period, if applicable). There could also be a knock-on effect on how long cases take to get to a final hearing, with tribunals still facing delays following Covid-19.
In any event, it is crucial that claimants and respondents alike obtain legal advice at an early stage to ensure that they are conscious of the limitation periods, can strategise accordingly and protect any relevant evidence.
The contributors to this article were Kelly Brown and Katie MacColl.
If you need any support or advice on limitation periods or would like to discuss anything raised in this article, please contact one of the team.